Protection in administrative cases for offenses
According to part 1 of Article 163 of the Administrative Code, in accordance with part 1 of Article 163 of the Administrative Code, a person is subject to administrative responsibility for anticompetitive actions (inaction) of state and local executive bodies, organizations endowed by the state with the functions of regulating the activities of market entities, and a fine of three hundred monthly calculation indices is imposed on officials. In accordance with subparagraph 2) According to paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, no one may be subjected to repeated criminal or administrative liability for the same offense. By the decree of the CAC of Aktobe dated November 20, 2018, he was brought to administrative responsibility under part 1 of Article 163 of the Administrative Code with the imposition of an administrative penalty in the form of an administrative fine in the amount of 300 monthly calculation indices for 741,500 tenge. By the resolution of the Aktobe Regional Court dated December 19, 2018, the decision of the court of first instance remained unchanged. By a decision of the Supreme Court, the judicial acts were annulled, and the proceedings were terminated. According to the Protocol on administrative offense No. 19 dated October 23, 2018, the authorized body conducted an investigation of violations of legislation in the field of competition protection in the State Institution "Department of Housing and Communal Services of Aktobe" (hereinafter referred to as the Housing and Communal Services Department) from July 20 to October 10, 2018. The investigation revealed that in 2017-2018, the Housing and Communal Services Department concluded public procurement contracts using a single source method by directly concluding an agreement with a Partnership, which violates the requirements of subparagraph 7) of paragraph 1 of Article 192 of the PC.
Protection in administrative cases for offenses
The Partnership is not a State-owned enterprise and does not have the appropriate powers established by law to carry out activities in competitive markets. In addition, street lighting services in populated areas, sanitation, landscaping and landscaping of settlements are not included in the list of activities carried out by legal entities, 50% of which are owned by the state and affiliated with them. According to the audit report of the Department of Internal State Audit for the Aktobe region (hereinafter referred to as the Audit Department), the conclusion by the Housing and Communal Services Department of contracts with the Partnership through direct conclusion of the contract violates the legislation on public procurement. According to the conclusion of the authorized body, the Housing and Communal Services Department, by concluding public procurement contracts from a single source by directly concluding an agreement with a Partnership, creates conditions for limiting competition, since private business entities cannot participate in them due to the lack of announcements on public procurement. In accordance with sub-paragraphs 8) and 9) of paragraph 2 of Article 194 of the PC, the restriction of access to the commodity market or the removal of market entities from it, as well as the granting of privileges or other advantages to individual market entities, is recognized as anticompetitive actions (inaction) by state and local executive bodies and organizations endowed by the state with the functions of regulating the activities of market entities. According to notification No. 02-03/2196 dated October 19, 2016, sent by the authorized body to the Partnership and the Akimat of Aktobe, paragraphs 2.5 and 2.6 of the Partnership's charter do not correspond to the list of activities carried out by municipal-owned legal entities with more than 50% of shares (shares in the authorized capital) owned by the state, and affiliated with them.
However, in accordance with clause 5.4 of the Partnership's charter, the amendment of the Partnership's charter or the approval of the charter in a new version are the exclusive competence of the sole participant of the Partnership, which is not the Housing and Communal Services Department, but the Akimat of Aktobe represented by the State Institution "Aktobe City Finance Department". These powers in accordance with subparagraph 1) paragraph 5.9 of the articles of Association of the Partnership cannot be attributed to the competence of the authorized body of the relevant industry, endowed with the right to own and use the state share of the Partnership, which, according to paragraph 3.2 of the articles of Association of the Partnership, is the Housing and Communal Services Department. The authorized body of the relevant branch refers to the bodies of the Partnership in accordance with clause 5.1 of the articles of association of the Partnership, but does not replace other bodies of the Partnership: the sole participant, as well as the sole executive body of the Partnership – the director. The protocol does not specify what is the fault of S. For carrying out public procurement using a single source method by directly concluding a public procurement contract in cases not provided for by the legislation of the Republic of Kazakhstan on public procurement, administrative liability is provided for by a special norm of the Special Part of the Administrative Code – Part 11 of Article 207 of the Administrative Code (at the time of the commission of the offense, S. – part 12 of the same Article 207 of the Administrative Code). Protocol on an administrative offense dated December 6, 2018, p. He was brought to administrative responsibility by the Audit Department in an abbreviated manner under part 12 of Article 207 of the Administrative Code with the imposition of an administrative fine in the amount of 120,500 tenge. The protocol was drawn up upon the conclusion by the Housing and Communal Services Department of a direct public procurement contract dated May 4, 2018 No. 127 with the Partnership for the maintenance of landscaping elements in the Park of the First President for 5,600,000 tenge, which violated the norms of paragraph 8 of Article 5 and subparagraph 27) of paragraph 3 of Article 39 of the Law of the Republic of Kazakhstan "On Public Procurement". In accordance with subparagraph 2) According to paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, no one may be subjected to repeated criminal or administrative liability for the same offense. This legal principle "Non bis in idem" ("Not twice for the same thing") excludes not only repeated punishment for one offense, but also the qualification of one event under several articles of the law on administrative responsibility, if their norms are correlated as general and special, or as a whole and a part. It is also unacceptable to double-count the same circumstance simultaneously when qualifying an offense and determining the type and measure of responsibility.
Protection in administrative cases for offenses
The norm of part 11 of Article 207 of the Administrative Code is special in relation to the provisions of part 1 of Article 163 of the Administrative Code, as a result of which the actions of S. on the direct conclusion of public procurement contracts in cases not provided for by the legislation of the Republic of Kazakhstan on public procurement in a single-source manner should be qualified under part 11 of Article 207 of the Administrative Code. Taking into account that under this rule, C has already been brought to administrative responsibility, and the fine has been paid in full, the proceedings on the administrative offense provided for in Part 1 of Article 163 of the Administrative Code have been terminated due to the absence of an administrative offense.
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